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OC as First Amendment Right

First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Second Amendment:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Is open carry not only protected under the Second Amendment, but also the act of open carry itself protected under the First Amendment?

Is there anyone who has viewed cases where open carry was argued as being protected under the First Amendment; either successfully or unsuccessfully?

Thank you.

Last edited by Beretta92FSLady; 03-19-2011 at 01:31 PM.

I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

Sometime ago I argued this point with Workman in Washington forum. He took a hard stance it is never a 1st amendment issue. He has since changed his tune he wrote that it can be after several showed up to the assault weapon ban in Oly.

Kind of off topic but to me it showed how even nudity can be a first amendment issue, (was one of my arguing points way back when).

A Florida woman was arrested for topless protest, and was released since here being topless was a free speech issue related to her protest.

OC was very attractive to me because it does "speak" about our rights and lets people know and confront issues they may have pushed to the back of their minds about our rights and gun issues. That means it is very much a free speech issue in my mind. And of course there are the countless conversations and "educating moments" that I have been able to have that I wouldn't have if I was concealing.

I am not anti Cop I am just pro Citizen.

U.S. v. Minker, 350 US 179, at page 187
"Because of what appears to be a lawful command on the surface, many citizens, because
of their respect for what only appears to be a law, are cunningly coerced into waiving their
rights, due to ignorance." (Paraphrased)

What about that little sidebar of freedom of expression? If offensive pornographic art is deemed to be protected under the 1A (nude virgin mary's made of poo, etc), and street theater and performance art are also deemed protected, then does open carry combined with your own artistic endeavors ( as in being part of your art and who you are as an artist), come under that same protection? What if an artist in a state like MD wanted to make an artistic statement, and it included open carry of a real looking replica gun? Or 10 of them!

I won't quite get into the artist OCing real guns in MD, not sure the art world would give ANY legal assistance to such an artist, but fake guns they might.

BTW I had to carry my wooden AK replica in a dark trash bag LOL- didn't want mass panic going on there in Baltimore with on foot transport of part of my art project.

I would say it falls under that. The great thing about our Bill of rights is that in their simplicity, they cover a wide range of things that would fall under them.

I am not anti Cop I am just pro Citizen.

U.S. v. Minker, 350 US 179, at page 187
"Because of what appears to be a lawful command on the surface, many citizens, because
of their respect for what only appears to be a law, are cunningly coerced into waiving their
rights, due to ignorance." (Paraphrased)

OC has much much more to do with the first, than the second amendment. I have a CPL, but choose not to carry concealed.

Me too and I carry sterile no ID or no CPL on me.

I am not anti Cop I am just pro Citizen.

U.S. v. Minker, 350 US 179, at page 187
"Because of what appears to be a lawful command on the surface, many citizens, because
of their respect for what only appears to be a law, are cunningly coerced into waiving their
rights, due to ignorance." (Paraphrased)

There is a good argument there, that open carry conveys a strong message about a matter of public concern and should be protected as expressive conduct.

I could see it going either way, the woman I was thinking of who stood nude in Florida although nudity was illegal, was let go because it was a matter of free speech and her nudity was a protest against the law.

I am not anti Cop I am just pro Citizen.

U.S. v. Minker, 350 US 179, at page 187
"Because of what appears to be a lawful command on the surface, many citizens, because
of their respect for what only appears to be a law, are cunningly coerced into waiving their
rights, due to ignorance." (Paraphrased)

Why not? Now the question is, could you have an open carry protest in a non-OC state and not be convicted? Is there anyone here willing to go through the motions of taking it to the supreme court?

A man who posts on this site named Dave Workman reminds us to not be a "test case." ...well, unless you are willing to accept that you might be convicted of a crime.

OC as a First Amendment issue has been something I have been thinking about a lot lately. "Life, liberty and the pursuit of happiness" is tied to the Second Amendment, so it makes sense that the First Amendment would be tied into other Amendments. There have been many Constitution Amendments that have been argued along with the Second Amendment...for example: the denial of or federal barring of purchasing a firearm to certain individuals, and how it relates to the Fifth Amendment.

I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

A man who posts on this site named Dave Workman reminds us to not be a "test case." ...well, unless you are willing to accept that you might be convicted of a crime.

OC as a First Amendment issue has been something I have been thinking about a lot lately. "Life, liberty and the pursuit of happiness" is tied to the Second Amendment, so it makes sense that the First Amendment would be tied into other Amendments. There have been many Constitution Amendments that have been argued along with the Second Amendment...for example: the denial of or federal barring of purchasing a firearm to certain individuals, and how it relates to the Fifth Amendment.

Dave isn't a lawyer, he has given lot's of "advice" many of us have ignored with positive results. He also isn't very pro OC.

Although in this particular instance I wouldn't want to be a test case, I would never discourage someone with deep pockets in doing so. I think a competant lawyer could argue that it was 1st amendment right.

Many "test" cases is what have shed light on and done away with outrageous "laws" as unconstitutional. Rosa Parks-McDonald. Unfortunately this seems to be the only process the government will listen to otherwise they will continue to force unconstitutional laws down our throats.

I am not anti Cop I am just pro Citizen.

U.S. v. Minker, 350 US 179, at page 187
"Because of what appears to be a lawful command on the surface, many citizens, because
of their respect for what only appears to be a law, are cunningly coerced into waiving their
rights, due to ignorance." (Paraphrased)

Dave isn't a lawyer, he has given lot's of "advice" many of us have ignored with positive results. He also isn't very pro OC.

Although in this particular instance I wouldn't want to be a test case, I would never discourage someone with deep pockets in doing so. I think a competant lawyer could argue that it was 1st amendment right.

Many "test" cases is what have shed light on and done away with outrageous "laws" as unconstitutional. Rosa Parks-McDonald. Unfortunately this seems to be the only process the government will listen to otherwise they will continue to force unconstitutional laws down our throats.

I have read(e) Workman's books, and there are moments where I feel he is either not pro-OC or he is apprehensive about OC (he seems to be more apprehensive IMO). I am guessing part of it is his audience. There are pro-Second Amendment groups that do not support OC.

You are right, he is not a lawyer, although, it doesn't take a lawyer to realize that if you are OC'ing during an OC protest in a state that does not permit OC, you are likely going to be a test case.

But you acknowledge that you do not want to be 'the' test case--neither do I.

If a lawyer(s) take the time to formulate a reasoned argument of OC'ing being a First Amendment issue, SCOTUS is always receptive to tackling such issues. I would love to read the transcripts of that case.

I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

To be fair Dave has changed his position that OC can be first amendment issue too. We had argued the point in the past.

I think it was his article after many OC'd to the assault weapon ban hearing in the Capitol.

Yea no argument there that you would be a test case in that scenario, and if I had a lot of money and time and some real good lawyers, I probably would volunteer to be the test case.

Instead I prefer to be the "test" case on smaller levels where I can handle the heat, either by myself or from fine folks like yourself on this forum.

I am not anti Cop I am just pro Citizen.

U.S. v. Minker, 350 US 179, at page 187
"Because of what appears to be a lawful command on the surface, many citizens, because
of their respect for what only appears to be a law, are cunningly coerced into waiving their
rights, due to ignorance." (Paraphrased)

Do keep in mind that there is nothing in the First Amendment which protects "freedom of expression". It just isn't in there. So how did this concept come about? Two ways. Through interpretation, which is a bastardization, and/or through the Ninth Amendment;

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Ninth Amendment is the proper and valid path whereas interpretation is an omen for disaster which has been evidenced by the sinister raping of the Second Amendment.

In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

Do keep in mind that there is nothing in the First Amendment which protects "freedom of expression". It just isn't in there. So how did this concept come about? Two ways. Through interpretation, which is a bastardization, and/or through the Ninth Amendment;

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Ninth Amendment is the proper and valid path whereas interpretation is an omen for disaster which has been evidenced by the sinister raping of the Second Amendment.

For the sake of this thread I will not get into the whole 'interpretation' and the Constitution.

Protest is expression. I would like to know how a person can protest in a way that is not expressive. Or, explain to me how SCOTUS has findings regarding the concept of "expression," and determined what constitutes "expression." Protesting verbally, marching, and carrying signs is a form of expression, or so it seems.

What is the difference between carrying a sign at a pro-Second Amendment protest which reads "Pro- Second Amendment," and OC'ing a sidearm at the same event?

I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

What is the difference between carrying a sign at a pro-Second Amendment protest which reads "Pro- Second Amendment," and OC'ing a sidearm at the same event?

I personally don't see the difference. Except one is also a 2A right.

Like last years 2A rally in Olympia, Dave warned folks not to carry long guns, many did they were making a statement, that simple. But again that's Washington not a place like Maryland or Washington D.C.

I am not anti Cop I am just pro Citizen.

U.S. v. Minker, 350 US 179, at page 187
"Because of what appears to be a lawful command on the surface, many citizens, because
of their respect for what only appears to be a law, are cunningly coerced into waiving their
rights, due to ignorance." (Paraphrased)

Do keep in mind that there is nothing in the First Amendment which protects "freedom of expression". It just isn't in there. So how did this concept come about? Two ways. Through interpretation, which is a bastardization, and/or through the Ninth Amendment;

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Ninth Amendment is the proper and valid path whereas interpretation is an omen for disaster which has been evidenced by the sinister raping of the Second Amendment.

I agree that it isn't up to "interpretation" but we do see if constitutional principles apply to certain scenarios. And to me expression is a form of "free speech" and would be protected.

I am open to hear how your opinion differs, and would like to find out how "expression" isn't a form of free speech.

I am not anti Cop I am just pro Citizen.

U.S. v. Minker, 350 US 179, at page 187
"Because of what appears to be a lawful command on the surface, many citizens, because
of their respect for what only appears to be a law, are cunningly coerced into waiving their
rights, due to ignorance." (Paraphrased)

For the sake of this thread I will not get into the whole 'interpretation' and the Constitution.

Protest is expression. I would like to know how a person can protest in a way that is not expressive. Or, explain to me how SCOTUS has findings regarding the concept of "expression," and determined what constitutes "expression." Protesting verbally, marching, and carrying signs is a form of expression, or so it seems.

What is the difference between carrying a sign at a pro-Second Amendment protest which reads "Pro- Second Amendment," and OC'ing a sidearm at the same event?

Did you read my entire post? The First Amendment says nothing about the "freedom of expression". However the Ninth Amendment leaves open freedoms which are the property of the People. Check out the Ninth Amendment.

In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

I agree that it isn't up to "interpretation" but we do see if constitutional principles apply to certain scenarios. And to me expression is a form of "free speech" and would be protected.

I am open to hear how your opinion differs, and would like to find out how "expression" isn't a form of free speech.

The word "speech" defines communication which is spoken. As I just mentioned, and posted prior, it is the Ninth Amendment where the concept of "freedom of expression" might be drawn, not the First Amendment. It says:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Basically this amendment is a catch all, a continuation if you will for rights which while not specifically mentioned in the Bill of Rights, are still retained by the People and are therefore not to be tread upon by government.

All I am saying with this is that over the past 219 years, the Bill of Rights has been watered down, twisted, ignored, disdained, and interpreted to the point that most people now just take it for granted that there are things in there that in reality are not, and things that are not in there which somehow are found to be there. For example the phrase, "separation of church and state" appears nowhere in either the Bill of Rights or the Constitution but in the second half of the 20th century we know what happened with that one.

When we allow insidious evil to creep into these hallowed documents and pretend concepts in there don't exist, we might as well just burn the things are have the courage of our convictions to say the Constitution and the Bill of Rights are meaningless and therefore are dead.

Last edited by SouthernBoy; 04-01-2011 at 11:21 AM.

In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

All I am saying with this is that over the past 219 years, the Bill of Rights has been watered down, twisted, ignored, disdained, and interpreted to the point that most people now just take it for granted that there are things in there that in reality are not, and things that are not in there which somehow are found to be there. For example the phrase, "separation of church and state" appears nowhere in either the Bill of Rights or the Constitution but in the second half of the 20th century we know what happened with that one.

When we allow insidious evil to creep into these hallowed documents and pretend concepts in there don't exist, we might as well just burn the things are have the courage of our convictions to say the Constitution and the Bill of Rights are meaningless and therefore are dead.

I often wonder how people believe that there is some Divine or true intent of the Constitution that was laid out by the Founding Fathers; and that there is some true interpretation and application of the Constitution. This idea that the Constitution has been "twisted, ignored...," is nothing more than a bunch of political, and ideological hoopla. Do you realize that although you might not agree with a SCOTUS finding, it is possible that the finding is Constitutional?

Unless you are stating that a SCOTUS finding you do not agree with is therefor unConstitutional, while a SCOTUS finding you do agree with is Constitutional?...how convenient is that.

Your "insidious evil" comment is nonsense. What is insidious evil? "Convictions," a cute little term that has no true meaning behind it other than what an individual, group, or society hold as some general concept of what constitutes "convictions."

I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

Did you read my entire post? The First Amendment says nothing about the "freedom of expression". However the Ninth Amendment leaves open freedoms which are the property of the People. Check out the Ninth Amendment.

The First Amendment is merely an affirmation of a fundamental right, but not a fundamental right in of itself, meaning, by including it in the First Amendment, and as part of the Constitution it does not make it any more or less a fundamental right. The First Amendment is a concept, and that concept is interpreted by SCOTUS, and SCOTUS makes a finding. Verbal protest is an expression, it is a verbal expression. When I verbalize my discontent to the Government, I am expressing it through my speech.

I should point out that the Constitution serving as an affirmation of 'fundamental rights' is contradictory to the Ninth Amendment.

What enumeration? Why not enumerations? "Enumerate" seems to be contingent of the number...not as the totality of the document (Constitution). So, the enumeration of the Constitution is determined by those who are in a position to deemed each Amendment to fall under "enumeration."

"...of certain rights,..."

But not all rights? This portion validates my assertion that enumeration does not include all Constitutional Amendments. Of "certain rights?" So, these Rights are merely rights? These so-called "fundamental ((R)(r))ights," or "affirmation of fundamental ((R)(r))ights appear to be dependent of some sort of valuation--some are valued as being Rights, while others are valued at being rights, but 'fundamental' none-the-less. If "rights" are deemed to be "Rights" then they are Rights, but if not, they are "rights." Are Rights any more fundamental than rights? Or are they both fundamental? Rights (and rights) are contingent on whether they are deemed to be fundamental based on ideological factors which impose a value on each instance of what is considered to constitute a Right/right and if deemed fundamental they are included in the framework of the Constitution. Seems like a living breathing document to me.

"...shall not be construed to deny or disparage others retained by the people."

LOL, Constitutional Amendment to make marriage between one male and one female?...would that be unConstitutional! Funny. Back on topic, sorry about that...

"Disparage others retained by the people."

So, 'Rights' shall not be used to "deny or disparage" other types of rights which have been valued as 'rights.' rights are retained by the people. How do "the people" retain those rights? And who are the "people?" Are they the majority, minority? SCOTUS seem to make findings of whether a law is Constitutional or not-Constitutional, and of the extent to which the Amendments of the Constitution are applicable to the everyday lives of the people, well, and the Government.

"The enumeration [(number)] in the Constitution, of certain rights, shall not be construed to deny or disparage others [(rights)] retained [(first "deemed," then "held")] by the people."

So, the rights that have been deemed as the peoples rights shall not be used to "deny or disparage" other rights that might be included as the peoples "rights."

There is no thing simple about the Constitution. The document appears superficially to be a congruent document, one that "affirms" some thing(s). But does it? It is merely a constructed framework that is used as an emblem (in-flux) of some notion of personal freedom, of a free society. Is the document necessary to a cohesive society, yes...because the alternative would be worse. Is the document definitive, HELL NO....but it makes for a good document to argue over its meaning until your blue in the face.

Last edited by Beretta92FSLady; 04-01-2011 at 02:50 PM.

I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

I often wonder how people believe that there is some Divine or true intent of the Constitution that was laid out by the Founding Fathers; and that there is some true interpretation and application of the Constitution. This idea that the Constitution has been "twisted, ignored...," is nothing more than a bunch of political, and ideological hoopla. Do you realize that although you might not agree with a SCOTUS finding, it is possible that the finding is Constitutional?

Unless you are stating that a SCOTUS finding you do not agree with is therefor unConstitutional, while a SCOTUS finding you do agree with is Constitutional?...how convenient is that.

Your "insidious evil" comment is nonsense. What is insidious evil? "Convictions," a cute little term that has no true meaning behind it other than what an individual, group, or society hold as some general concept of what constitutes "convictions."

Not once did I offer my opinion with what I posted, only facts as in verbiage appearing in these documents. I deliberately chose not to give an opinion because I was not of a mind to enter into any heated discussions or arguments. I did infer opinions with the corruption of the Founders writings and will freely and with much vigor concur with those remarks.

Frankly, I don't give a rat's a-- what anyone on this site or anywhere else thinks when they get a little testy with others. The day I start caring about such things is the day I will have lost any measure of my self respect.

In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

The word "speech" defines communication which is spoken. As I just mentioned, and posted prior, it is the Ninth Amendment where the concept of "freedom of expression" might be drawn, not the First Amendment. It says:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Basically this amendment is a catch all, a continuation if you will for rights which while not specifically mentioned in the Bill of Rights, are still retained by the People and are therefore not to be tread upon by government.

All I am saying with this is that over the past 219 years, the Bill of Rights has been watered down, twisted, ignored, disdained, and interpreted to the point that most people now just take it for granted that there are things in there that in reality are not, and things that are not in there which somehow are found to be there. For example the phrase, "separation of church and state" appears nowhere in either the Bill of Rights or the Constitution but in the second half of the 20th century we know what happened with that one.

When we allow insidious evil to creep into these hallowed documents and pretend concepts in there don't exist, we might as well just burn the things are have the courage of our convictions to say the Constitution and the Bill of Rights are meaningless and therefore are dead.

I got were you are coming from I never thought about it like that. I am definitely from the school of thought the constitution isn't up for interpretation. What was being laid out was basic human rights our government is to recognize and should never impair.

Berettalady, it isn't a matter of convenience when SCOTUS is right I agree when they are wrong I don't. What disturbs me is even when right it usually is usually narrowly by one vote. The men in black have made many disturbing decisions one glaring example is their stupid decision on the "commerce clause", any body with half a brain can tell what the intent of that law is, yet they have drastically increased Federal Power in areas it shouldn't be.

I am not anti Cop I am just pro Citizen.

U.S. v. Minker, 350 US 179, at page 187
"Because of what appears to be a lawful command on the surface, many citizens, because
of their respect for what only appears to be a law, are cunningly coerced into waiving their
rights, due to ignorance." (Paraphrased)

I got were you are coming from I never thought about it like that. I am definitely from the school of thought the constitution isn't up for interpretation. What was being laid out was basic human rights our government is to recognize and should never impair.

Berettalady, it isn't a matter of convenience when SCOTUS is right I agree when they are wrong I don't. What disturbs me is even when right it usually is usually narrowly by one vote. The men in black have made many disturbing decisions one glaring example is their stupid decision on the "commerce clause", any body with half a brain can tell what the intent of that law is, yet they have drastically increased Federal Power in areas it shouldn't be.

"The men in black have made many disturbing decisions one glaring example is their stupid decision on the "commerce clause", any body with half a brain can tell what the intent of that law is, yet they have drastically increased Federal Power in areas it shouldn't be."

Yes, and this is a prime example of what I meant by the creep of insidious evil. The Bill of Rights was not intended to be malleable by at least two of the Founding Fathers. Its recognition of rights which pre-exist their appearance in the Bill of Rights was believed to be so basic and so fundamental to individual freedom that they should be exempt from any alteration and therefore not capable of being amended. How else do those with less than honorable intentions carve up the noble experiment but to twist its foundation into that which it was never intended?

In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?